February 25, 2007

Chipping away at tribes

A GOP roadmap: From 'treaty' to 'race-based'Historically, Congress and the courts have interpreted “Indian tribes” in the commerce clause somewhat broadly, to include, for example, Alaska Natives and Native Hawaiians. But if the high court can be persuaded to adopt an interpretation narrow enough to exclude Native Hawaiians, would Alaska Natives be susceptible to court challenge on grounds that the Alaska Native Claims Settlement Act treats Alaska Natives not as tribes, but as corporations?

The table would then be set for challenges to tribes and nations in Indian country. Perhaps “Indian Tribes” in the commerce clause meant only federal treaty tribes? Perhaps it doesn't mean tribes of more than 20,000 in population?

Every conceivable iteration of “Indian Tribes” under the Constitution will be probed for weaknesses of interpretation, always in hopes of narrowing plain language for partisan purposes.